Exhibit 2.1.4
SERIES A AND SERIES B PREFERRED
UNIT PURCHASE AGREEMENT
by and among
Maxygen, Inc., a Delaware
Corporation
Astellas Bio Inc., a Delaware
Corporation
and Perseid Therapeutics LLC, a
Delaware Limited Liability Company
Dated as of September 18,
2009
TABLE OF CONTENTS
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Page
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ARTICLE 1
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Purchase and Sale of Preferred Units
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1
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1.1
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Sale and
Issuance of Series A and Series B Preferred Units
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1
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1.2
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Closing;
Delivery
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2
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1.3
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Use of
Proceeds
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2
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ARTICLE 2
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Representations, Warranties and Covenants of the
Company
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2
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2.1
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Organization
and Operation
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2
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2.2
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Capitalization
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2
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2.3
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Authority
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3
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2.4
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Valid Issuance
of Units
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3
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2.5
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Governmental
Approvals
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4
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2.6
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Company
Documents
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4
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ARTICLE 3
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Representations, Warranties and Covenants of the
Purchasers
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4
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3.1
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Incorporation
by Reference
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4
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3.2
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Purchase
Entirely for Own Account
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4
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3.3
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Investment
Experience; Speculative Nature of Investment
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4
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3.4
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Disclosure of
Information
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5
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3.5
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Restricted
Securities
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5
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3.6
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No Public
Market
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5
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3.7
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Reliance by the
Company
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5
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3.8
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Legends
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5
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3.9
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Accredited
Investor
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6
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3.10
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No General
Solicitation
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6
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3.11
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Tax
Advisors
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6
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ARTICLE 4
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Closing Matters
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6
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ARTICLE 5
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Miscellaneous
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6
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5.1
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Survival of
Representations, Warranties and Covenants
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6
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5.2
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Indemnification; Sole Remedy; Dispute
Resolution
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7
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5.3
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Successors and
Assigns
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7
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5.4
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Governing
Law
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7
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5.5
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Counterparts
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7
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-i-
TABLE OF CONTENTS
(continued)
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Page
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5.6
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Titles and
Subtitles
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7
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5.7
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Notices
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8
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5.8
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No
Finder’s Fees
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9
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5.9
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Amendments and
Waivers
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10
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5.10
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Severability
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10
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5.11
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Delays or
Omissions
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10
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5.12
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Entire
Agreement
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10
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5.13
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Interpretation
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10
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-ii-
SERIES A AND SERIES B PREFERRED
UNIT PURCHASE AGREEMENT
THIS SERIES A AND SERIES B PREFERRED
UNIT PURCHASE AGREEMENT is made as of the 18 day of September, 2009
by and among Perseid Therapeutics LLC, a Delaware limited liability
company (the “ Company ”), on the one hand, and
Maxygen, Inc., a Delaware corporation (“ Maxygen
”), and Astellas Bio Inc., a Delaware corporation (“
Bio ,” and together with Maxygen, the “
Purchasers ”), on the other hand. All capitalized
terms used and not defined herein shall have such meanings as set
forth in the Master Joint Venture Agreement among Maxygen, Bio, and
Astellas Pharma Inc., a Japanese corporation, dated as of
June 30, 2009 (the “ Joint Venture Agreement
”).
RECITALS
WHEREAS, the Purchasers are parties
to the Joint Venture Agreement, and it is a condition to the
closing of the transactions contemplated by such Joint Venture
Agreement that the Company and the Purchasers execute and deliver
this Agreement.
WHEREAS, the purchase and sale of
the Units pursuant hereto shall be effectuated, first, by the
contribution of certain Maxygen assets to the Company in exchange
for equity in the Company and, immediately following the
contribution of such assets to the Company, on Bio’s and
Maxygen’s contribution of cash to the Company in exchange for
equity in the Company.
NOW THEREFORE, the parties hereby
agree as follows:
ARTICLE 1
PURCHASE AND SALE OF PREFERRED
UNITS
1.1 Sale and Issuance of Series A
and Series B Preferred Units .
(a) Subject to the terms and
conditions of this Agreement, Maxygen agrees to purchase at the
Closing (as defined below), and the Company agrees to sell and
issue to Maxygen at the Closing, TEN MILLION
(10,000,000) Series A Preferred Units (the “ Series A
Preferred Units ”), at a purchase price of $1.00 per unit
for an aggregate purchase price of TEN MILLION U.S. Dollars
($10,000,000), and FORTY MILLION (40,000,000) Series A
Preferred Units in exchange for the Contributed Assets in a
transaction intended to qualify as a tax-free exchange under
Section 351 of the Code. The Series A Preferred Units issued
to Maxygen pursuant to this Agreement shall be referred to as the
“ Series A Units .”
(b) Subject to the terms and
conditions of this Agreement, Bio agrees to purchase at the
Closing, and the Company agrees to sell and issue to Bio at the
Closing, TEN MILLION (10,000,000) Series B Preferred Units
(the “ Series B Preferred Units ”), at a
purchase price of $1.00 per unit for an aggregate purchase price of
TEN MILLION U.S. Dollars ($10,000,000). The Series B Preferred
Units issued to Bio pursuant to this Agreement shall be referred to
as the “ Series B Units ,” and, along with the
Series A Units, as the “ Units .”
1.2 Closing; Delivery
.
(a) The closing of the transactions
contemplated by this Agreement (the “ Unit Purchase
”) shall take place at the Closing as specified in
Section 3.1 of the Joint Venture Agreement.
(b) At the Closing, the Company
shall deliver to each Purchaser a certificate representing the
Units being purchased by such Purchaser at such Closing against
payment of the purchase price therefor by check payable to the
Company or by wire transfer to a bank account designated by the
Company (for the Units to be purchased by cash) or by transfer of
the Contributed Assets pursuant to the Asset Contribution Agreement
(for the Units to be purchased by contribution of the Contributed
Assets), all as set forth in Section 1.1 .
1.3 Use of Proceeds . The
Company will use the proceeds from the sale of the Units for
general corporate purposes.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY
The Company hereby represents,
warrants and covenants to each Purchaser that, except as set forth
on the Disclosure Schedule attached as Exhibit A to this
Agreement, which exceptions shall be deemed to be part of the
representations, warranties and covenants made hereunder, the
following representations are true and complete as of the date of
the Closing, except as otherwise indicated.
2.1 Organization and
Operation . The Company is a limited liability company duly
formed, validly existing and in good standing under the laws of the
State of Delaware, the jurisdiction of its formation. The Company
has not conducted any business operations prior to the date
hereof.
2.2 Capitalization . The
authorized capital of the Company (the “ Company Units
”) consists, immediately prior to the Closing, of:
(a) Seventy-five million
(75,000,000) common units (the “ Common Units
”), none of which are issued and outstanding. All of the
outstanding Common Units have been duly authorized, are fully paid
and non-assessable and have been issued in compliance with all
applicable federal and state securities laws.
(b) Sixty million
(60,000,000) preferred units (the “ Preferred
Units ”), of which fifty million (50,000,000) units
have been designated Series A Preferred Units and ten million
(10,000,000) units have been designated Series B Preferred
Units, none of which are issued and outstanding immediately prior
to Closing. The rights, privileges and preferences of the Preferred
Units are as stated in the LLC Agreement and as provided by the
Limited Liability Company Act of the State of Delaware (the “
LLCA ”). Immediately following the Closing, the only
issued and outstanding Company Units will be all of the Preferred
Units.
-2-
(c) The Company has reserved fifteen
million (15,000,000) Common Units for issuance to officers,
managers, employees and consultants of the Company pursuant to the
Equity Incentive Plan duly adopted by the Board of Managers and
approved by the Company’s members. All such reserved Common
Units remain available for issuance to officers, managers,
employees and consultants pursuant to the Equity Incentive Plan.
The Company has furnished to the Purchasers complete and accurate
copies of the Equity Incentive Plan and forms of agreements to be
used thereunder.
(d) Except for (i) the
conversion privileges of the Units to be issued under this
Agreement and (ii) the rights provided in the LLC Agreement
and the Transaction Agreements, there are no outstanding options,
warrants, rights (including conversion or preemptive rights and
rights of first refusal or similar rights) or agreements, orally or
in writing, to purchase or acquire from the Company any Common
Units, Series A Preferred Units or Series B Preferred Units, or any
securities convertible into or exchangeable for Common Units,
Series A Preferred Units or Series B Preferred Units.
(e) Except as set forth in
Section 2.2 of the Disclosure Schedule, none of the
Company’s unit purchase agreements or unit award documents
contains or will contain a provision for acceleration of vesting
(or lapse of a repurchase right) or other changes in the vesting
provisions or other terms of such agreement or understanding upon
the occurrence of any event or combination of events. Except as set
forth in the LLC Agreement or the Equity Incentive Plan, the
Company has no obligation (contingent or otherwise) to purchase or
redeem any of its membership units.
2.3 Authority . The Company
has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and thereunder and
to consummate the Unit Purchase. The execution and delivery of this
Agreement and the consummation by the Company of the Unit Purchase
have been duly and validly authorized by all requisite action, and
no other proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the Unit Purchase. At the
Closing, this Agreement will (a) be duly and validly executed
and delivered by the Company and (b) constitute the legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium and other
similar laws and equitable principles related to or limiting
creditors’ rights generally, by the availability of equitable
remedies and defenses, and to the extent the indemnification
provisions contained in the Investors’ Rights Agreement may
further be limited by applicable laws and principles of public
policy.
2.4 Valid Issuance of Units .
The Units, when issued, sold